Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 62-049594
BUTZ, J.A jury convicted defendant Darryl Wesley Teeters of corporal injury upon a spouse with a prior conviction for the same. (Pen. Code, § 273.5, subds. (a), (e).) In bifurcated proceedings, the court found a strike prior and two prior prison terms to be true.
Undesignated statutory references are to the Penal Code.
The court sentenced defendant to state prison for an aggregate term of 10 years, that is, the midterm of four years for the underlying offense, doubled for the strike prior, plus two one-year enhancements for the prior prison terms.
Defendant appeals. He contends (1) the trial court abused its discretion in refusing to consider his request for the appointment of cocounsel; (2) the trial court erroneously admitted evidence of a stun gun which was not used in the commission of the offense; (3) the trial court abused its discretion in refusing to admit evidence of the victim’s prior convictions for impeachment purposes or in refusing a brief continuance to obtain foundational evidence or, in the alternative, defense counsel rendered ineffective assistance in failing to obtain the foundational evidence in a timely manner; and (4) the trial court erred in failing to instruct that defendant’s admissions should be viewed with caution. We shall affirm the judgment.
FACTUAL BACKGROUND
Neither the victim nor defendant testified at trial. The prosecution’s case relied upon eyewitness testimony. Defendant represented himself at trial from the beginning until about midway at which time counsel was reappointed at defendant’s request. The defense challenged the eyewitness’s credibility and asserted that the victim fabricated the incident.
Prior conviction for corporal injury upon spouse
On July 18, 2002, defendant and his spouse, the victim, were seen by neighbors arguing next to a pickup truck parked in the driveway of the victim’s parents. The truck was being driven by an unidentified man. Defendant and the other man had dropped the victim off at her parents’ home and defendant was apparently trying to keep the victim from getting back into the truck. The victim was screaming at them not to leave her there. The victim reached into the engine area of the truck which had no hood and grabbed some wires. Defendant hit the victim, lifting her off the ground and knocking her unconscious. The victim was taken to the hospital. Defendant was convicted of violating section 273.5, subdivision (a). Certified copies of the record of this conviction were introduced into evidence and a fingerprint expert testified that defendant’s fingerprints matched those on the record of conviction.
Current conviction for corporal injury upon spouse
On February 8, 2005, the victim was staying with Nancy Garman and Loretia Pombo. Defendant arrived and argued with the victim in the bedroom. Garman heard a slapping noise and the victim came out of the bedroom crying. Sometime after dark, Pombo went outside with her dog and heard defendant and the victim arguing loudly next to his pickup truck parked out front about 30 yards away. Pombo told them to be quiet because of the neighbors. Defendant hit the victim in the face. Pombo could not see whether defendant used an open hand or his fist. The victim’s head jerked back and hit the truck. Defendant left. The victim did not call the police. The victim had a knot above her eye and one on the back of her head. Defendant, representing himself, elicited from Pombo that the victim said defendant had hit her and did not want the police involved because she was afraid of him.
Defendant impeached Pombo with her prior conviction for possession of a controlled substance for sale. A defense investigator who interviewed Pombo testified that Pombo had claimed she had not seen defendant strike the victim. In rebuttal, Pombo stated that she saw defendant throw his arm towards the victim and the victim’s head hit the truck.
On February 9, 2005, Pombo saw that the victim had a black eye. That evening, Garman and Pombo heard defendant arrive, skidding his truck to a halt. He appeared to be high or drunk and angry. He pounded on the front door, demanding to see the victim. The victim hid. Garman opened the door slightly and defendant barged in. Garman led defendant to believe that the victim was in the garage. He went in the garage and Garman locked the door behind him. Meanwhile, the victim and Pombo got into a car. Defendant broke the door down and then ran to the departing car, punching the window. Pombo drove off with the victim. Defendant followed in his truck. Garman spoke with the 911 operator, giving a description of defendant’s truck. A sheriff’s deputy found defendant standing outside his truck, holding a tire iron. His truck had a flat tire and had struck a concrete pole. When the deputy asked defendant what was going on, defendant replied, “I don’t know what is wrong with the bitch. I didn’t touch her tonight.” When asked whether he had any weapons, defendant admitted he had a stun gun in the truck under the front seat. The deputy found the gun underneath the driver’s seat.
A different deputy sheriff interviewed the victim about an hour after the incident. The victim’s injuries were photographed. She had three small bumps on the back of her head, bruising to her left eye and a red mark on her left side. The deputy observed damage to the door between the garage and the house. Defendant, representing himself, elicited from the deputy that the victim told him that defendant had beaten her up the previous evening.
On March 7, 2005, defendant telephoned his mother from jail. His mother told him that he should think about it before he tried to take a piece off of the victim. Defendant replied, “I didn’t get a piece off [the victim]. I took her out there to kill her.”
Defense counsel called defendant’s former girlfriend, Shelley Campbell, to testify about the victim’s temper and jealousy. One time, Campbell saw the victim throw a glass of water on defendant’s face while he was sleeping. Another time, Campbell responded to defendant’s distress call. When Campbell arrived, the victim was throwing things and screaming.
DISCUSSION
I
Defendant first contends the trial court abused its discretion in refusing to consider his request for the appointment of cocounsel. The Attorney General initially responds that defendant has forfeited the issue because the record does not clearly reflect that defendant requested cocounsel. On the merits, the Attorney General claims that the trial court did not abuse its discretion since defendant was not belligerent, disruptive or unable to stay within the rules once explained to him and any error was harmless. We conclude that the trial court did not abuse its discretion in denying defendant’s request.
A. Background
Defendant and the Attorney General agree that “the pretrial proceedings in this case were protracted and frustrating.”
On February 14, 2005, the public defender was appointed to represent defendant.
On April 8, 2005, the trial court denied defendant’s motion to substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118.
On April 29, 2005, the court relieved the public defender who declared a conflict.
On May 5, 2005, the court appointed new counsel.
On May 9, 2005, the court granted defendant’s request to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562] (Faretta).
On May 10, 2005, the court reappointed substitute counsel when defendant changed his mind, withdrawing his request to represent himself.
On June 6, 2005, the court relieved substitute counsel who declared a conflict and appointed new counsel.
On June 9, 2005, the court granted defendant’s request to represent himself.
On June 27, 2005, the first day of trial, the parties and the court discussed in limine matters before jury selection began. After allowing the prosecutor to set forth his motions, the court asked whether defendant wished appointed counsel:
“THE COURT: Mr. Teeters, before I ask you for your response to that and whatever motions you have this morning, I want to give you one last opportunity to--maybe not the last opportunity, but it’s my first time taking advantage of the opportunity to ask you if you are certain you don’t want to have an attorney represent you.
“[DEFENDANT]: I would be interested in discussing the prospect of maybe cocounsel, but at this point in the game I’m not going to have an attorney step up. I’ve had five attorneys, Your Honor.
“THE REPORTER: Mr. Teeters, can you speak into the microphone, please.
“[DEFENDANT]: I’m sorry. I’ve had five attorneys on my way to trial here, and at no time have I waived time. I’ve made it very evident that I believe the victim in this case is lying, and I want her to take the stand. And on my journey to my fast and speedy trial, I had an attorney get me to the eve of my jury trial and conflict out, so the new law firm has to be appointed again granting this district attorney and my attorney time to prepare a case to bring it forth. We’ve done this five
“THE COURT: I’ve been through--I read your letter that you submitted. I understand.
“[DEFENDANT]: I have a motion here for cocounsel if you would like to hear it.
“THE COURT: I am not going to appoint cocounsel, but I’ll appoint an attorney to represent you. We’ve appointed an investigator to help you out. I’ll appoint an attorney to represent you. I think the problem is that attorneys don’t like to lose. They want to win their case, and they need time to prepare for trial. There’s a conflict there between your wanting a speedy trial and their wanting to fully and fairly represent you.
“[DEFENDANT]: There’s a conflict there with ethics, I believe. I believe that [the public defender] getting me to the eve of my trial and conflicting out on the very day of my trial after talking to me three times that day, is unethical, Your Honor. Then the [substitute] law firm, they thought they ought to conflict in. They said we prosecuted you before. What do you want to do with it? If you go through a trial, that might be an ace in [the] hole
“THE REPORTER: You need to slow down, please.
“THE COURT: She needs to take everything down, so just speak slowly. I’ll put my hand up if you are going too fast.
“[DEFENDANT]: Thank you. I don’t want a miscarriage of justice. I want a fair trial. I want one trial. I’m ready to go.
“THE COURT: Okay. I want to give you that opportunity one last time.
“[DEFENDANT]: Thank you.
“THE COURT: If you change your mind between now and the time the jury is called in, let me know.
“[DEFENDANT]: I will do that.”
Defendant thereafter responded to the prosecutor’s in limine motions. Defendant then moved to exclude his statements made prior to advisement of rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. The court determined that an evidentiary hearing would be required. Defendant also challenged the charge of possession of a stun gun, claiming it had been dismissed. Other issues were raised and discussed.
B. Analysis
Having waived the constitutional right to counsel in order to represent himself, defendant had no constitutional right to cocounsel, advisory counsel or standby counsel. The trial court had the authority to appoint such counsel upon a substantial showing that such an arrangement was needed in order to control the proceedings before it and to promote justice; its determination whether to do so was within its discretion which will not be disturbed absent clear abuse. (Faretta, supra, 422 U.S. at p. 834, fn. 46 [45 L.Ed.2d at p. 581]; People v. Hamilton (1989) 48 Cal.3d 1142, 1164, fn. 14; People v. Bloom (1989) 48 Cal.3d 1194, 1218-1220; People v. Bigelow (1984) 37 Cal.3d 731, 742; People v. Mattson (1959) 51 Cal.2d 777, 797.)
Here, defendant requested cocounsel but the court denied his request, stating that it would appoint counsel to represent him. We simply disagree with the Attorney General’s characterization of the record as ambiguous as to whether defendant desired cocounsel. Defendant stated that he had a motion for cocounsel. The court denied the request. Defendant did not disrupt the proceedings. The court properly concluded that it could control the proceedings with defendant acting without cocounsel, advisory counsel or standby counsel and that defendant would receive a fair trial while exercising his right to represent himself. We reject defendant’s claims that he demonstrated confusion and incompetence. This was not a complex case. He was warned concerning the dangers of self-representation but he chose to proceed in order to ensure his speedy trial rights were observed. Despite the fact that he may have committed errors in representing himself, he was able to introduce evidence to impeach Pombo, who was the only eyewitness to the February 8, 2005 incident in front of the house near defendant’s pickup truck, with her prior conviction. We find no abuse of discretion.
II
Defendant next challenges the introduction of the evidence of the stun gun. Initially defendant was charged with possession of a stun gun, an infraction. (§ 12651, subd. (a).) Trial proceeded on such count as well as the domestic violence offense. When defendant was arrested on February 9, 2005, he told the deputy he had a stun gun underneath the front seat of his pickup truck. Just before his arrest, he had been at Garman and Pombo’s residence, demanding to see the victim. She escaped with Pombo. When defendant was in jail, he told his mother that he had planned to kill the victim. The trial court ruled the evidence of the stun gun was admissible despite the fact that the stun gun charge was no longer before the jury, the trial court having granted counsel’s midtrial motion to sever for lack of evidence presented at the preliminary hearing and for lack of a holding order on such charge. We find no error in admitting the evidence.
Evidence Code section 1109 permits the introduction of other domestic violence evidence, that is, “abuse committed against . . . a spouse” (Pen. Code, § 13700, subd. (b)) “intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to . . . herself” (id., subd. (a)). Although defendant did not use the stun gun in the commission of the domestic violence incident on February 8, 2005, the evidence of the stun gun was evidence related to the domestic violence incident which occurred on February 9, 2005. Contrary to defendant’s claim otherwise, the incident on February 9, 2005, was evidence of “other domestic violence” (Evid. Code, § 1109) and was more probative than prejudicial (Evid. Code, § 352).
In any event, the evidence of the current offense was overwhelming. Pombo witnessed defendant hitting the victim and testified as to the victim’s injuries. Garman also testified as to the victim’s injuries. A 911 call was made the next day when defendant barged into the home looking for the victim. A deputy sheriff confirmed the victim was injured. Defendant had previously been convicted of abusing the same victim. Defendant did not testify. Any error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
III
Defendant next contends that the trial court erroneously refused to admit certified copies of prior conviction records to impeach the hearsay statements of the victim. He argues that the documents were admissible as self-authenticating documents and there was no need for any foundational evidence. Assuming foundational evidence was required, defendant contends the trial court erred in refusing his request for a brief continuance to obtain the same. In the alternative, defendant contends defense counsel rendered ineffective assistance in failing to present the foundational evidence to admit records of the victim’s priors. We conclude that the trial court did not err in requiring foundational evidence nor did it abuse its discretion in denying a continuance and that defendant has failed to establish ineffective assistance of counsel.
A. Background
While representing himself, defendant cross-examined the deputy who interviewed the victim on February 9 and elicited testimony that the victim told the deputy that defendant beat her up. Defendant also cross-examined Pombo and elicited testimony that the victim told Pombo that defendant hit her and that she was afraid of him.
Defense counsel was appointed midtrial. After both parties rested, defense counsel sought to admit documents reflecting that the victim had “prior convictions, both misdemeanor and felony, or at the very least with her crimes of moral turpitude” in order to impeach her hearsay statements. The trial court initially refused to admit the evidence because defendant did not have certified copies of the records of the same. Shortly thereafter, defense counsel presented certified copies of records which he represented were Sacramento County Superior Court documents including some probation orders and docket notes. Apparently, these records lacked fingerprints or any identifying information other than the person’s name. The record on appeal does not include these documents. The prosecutor clarified information defense counsel provided, referring to documents. The record on appeal does not include these documents either.
Apparently, the victim had a 2000 felony conviction for welfare fraud, a 2002 misdemeanor theft conviction and a 2004 burglary conviction.
The trial court refused to admit the evidence defense counsel offered because there was no foundational evidence, such as a fingerprint or handwriting expert, to establish that the victim and the convicted person were one and the same. Defense counsel requested a brief continuance in order to obtain the foundational evidence. The court denied the request, concluding that the trial had already been delayed. The court also determined that the probative value of the evidence was “close to” being “de minimus.”
Later, after the verdict but prior to sentencing, the trial court refused to allow defense counsel to add the records to the file, noting that the records had not been marked at trial and commenting that if review was sought on appeal, defense appellate counsel could request them.
B. Analysis
Evidence Code section 1202 provides, in relevant part: “Any other evidence offered to attack or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness at the hearing.” A prior felony conviction can be used to attack the credibility of the declarant who is not available for trial. (People v. Jacobs (2000) 78 Cal.App.4th 1444, 1449-1453; People v. Stevenson (1978) 79 Cal.App.3d 976, 989-990.)
Defendant argues that the trial court erroneously concluded that the certified copies were inadmissible without foundational evidence, citing section 969b and People v. Castillo (1990) 217 Cal.App.3d 1020, 1024, footnote 5 (Castillo). He claims that the question, whether the victim who was identified at trial as defendant’s spouse with the same last name was the same person identified in the records with a different last name, went to the weight of the evidence, not its admissibility, especially in view of the fact that her first name was sufficiently uncommon and the marriage license was already before the jury. He claims in the alternative that the trial court’s refusal to grant a brief continuance was an abuse of discretion and counsel’s failure to obtain the foundational evidence in a timely manner constituted ineffective assistance of counsel.
Initially we note that the record on appeal does not include the records of the victim’s prior convictions offered by defense counsel. “‘Before an appellate court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.’” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1176.) The offer of proof provides an adequate record for appellate review; without it, we cannot evaluate the effect of the excluded evidence. (Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93-94.) Defendant’s contention on appeal fails for failure to provide an adequate record for review.
Defendant’s citation of section 969b and Castillo, supra, 217 Cal.App.3d 1020, assumes the records offered at trial were a certified “prison packet” (he claims defense counsel “offered certified prison records”). The Attorney General claims the defense offered “certified copies of docket sheets.” The description offered in the trial court suggests something less than defendant claims and something more than the Attorney General advances. Even if we consider the parties’ description in the trial court of the certified documents as Sacramento County Superior Court docket sheets and probation orders, we conclude that defendant has failed to demonstrate that the trial court abused its discretion in concluding that the offered evidence did not meet applicable rules of admissibility. The trial court properly ruled that the documents, which were not described as certified prison records, did not meet foundational requirements for admission in that they had no fingerprints or other identifying information to conclude that the person named in the records and the victim in the present case were one and the same. (See People v. Martinez (2000) 22 Cal.4th 106, 113-121, 134-135, 136-138; People v. Dunlap (1993) 18 Cal.App.4th 1468, 1471-1472, 1476-1481.)
We further conclude that the trial court did not abuse its discretion in refusing a continuance to obtain the foundational evidence. (People v. Wilson (2005) 36 Cal.4th 309, 352; People v. Howard (1992) 1 Cal.4th 1132, 1171 (Howard).) “To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness’s attendance, that the witness’s expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.” (Howard, supra, 1 Cal.4th at p. 1171; People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1036.)
Midtrial, defense counsel was appointed and granted a brief continuance, over the prosecution’s objection. Defense counsel requested the next continuance after both sides rested, the court was prepared to instruct the jury, and defense counsel’s request to introduce documents to impeach the victim had just been denied. There was no showing that a fingerprint or handwriting expert could be obtained in a reasonable time.
Even assuming the continuance should have been granted, we find any error harmless. The evidence against defendant was overwhelming. Pombo witnessed the physical abuse and the victim’s injuries. Garman testified about an argument in the bedroom before defendant left and hearing a slapping noise with the victim exiting the bedroom crying. A sheriff’s deputy saw the victim’s injuries and photographed the same, albeit the next day. Defendant did not testify. He had a prior domestic violence conviction for abuse he inflicted upon the same victim. The evidence he offered with respect to the victim’s anger and jealousy was insubstantial and did not support his apparent claim that the victim was the aggressor.
Defendant, representing himself, asked questions eliciting the victim’s hearsay statements, not the prosecutor. Had counsel been appointed prior to trial, defense counsel most likely would not have elicited the victim’s hearsay statements and no impeachment would have been required. Defense counsel cannot be faulted given the circumstances and timing of his appointment. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
IV
On February 9, 2005, when the deputy found defendant next to his truck, which had collided with a concrete pillar, he asked defendant what was going on. Defendant replied, “I don’t know what is wrong with the bitch. I didn’t touch her tonight.” Defendant contends that the trial court failed to instruct sua sponte with CALJIC No. 2.71, that is, that defendant’s admissions should be viewed with caution.
CALJIC No. 2.71 provides: “An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]”
The Attorney General responds that the instruction was not required because defendant’s statement did not prove his guilt but rather was exculpatory in that he stated that he did not hit the victim.
In reply, defendant notes that the statement was admitted in the prosecution’s case-in-chief during direct examination of the deputy and further, that the prosecutor characterized defendant’s statement as an admission in closing argument.
Where there is substantial evidence of an admission, the trial court has a duty to instruct sua sponte with CALJIC No. 2.71. The trial court’s failure to so instruct is error but will result in reversal only “‘if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.’” (People v. Bunyard (1988) 45 Cal.3d 1189, 1224.)
Defendant’s statements made to the deputy were implied admissions because they demonstrate that defendant had previously hit the victim and reflect a consciousness of guilt for the current offense in view of all the circumstances. The trial court had a duty to instruct sua sponte and its failure to do so was error. The error, however, was harmless. The purpose of CALJIC No. 2.71 is to assist the jury in evaluating whether defendant made the statement. (People v. Livaditis (1992) 2 Cal.4th 759, 784; People v. Stankewitz (1990) 51 Cal.3d 72, 94, citing People v. Beagle (1972) 6 Cal.3d 441, 456.) Here, there was no evidence that defendant did not utter the statement or that the deputy fabricated or inaccurately recalled or recounted defendant’s statement. Defendant did not testify or otherwise deny or even argue that he did not make the statement. The trial court’s error in failing to instruct the jury with CALJIC No. 2.71 was harmless. (Beagle, supra, 6 Cal.3d at pp. 455-456.)
DISPOSITION
The judgment is affirmed.
We concur: DAVIS , Acting P.J., ROBIE , J.